Q&A: FMLA-required rest breaks generally not compensable under FLSA
Q&ALeave LawsWage and Hour
Question: We have a non-exempt employee who has a medically certified serious health condition that requires a 10-minute rest break every hour. Our current schedule allows one 10-minute rest break for every four hours worked, so most non-exempt employees only receive two rest breaks each shift and not the eight this employee requires. Do we have to pay the employee for all eight rest breaks?
Answer: Probably not under the FLSA, but check state law. Recently, the U.S. Department of Labor (DOL) issued an opinion letter addressing federal Family and Medical Leave Act (FMLA) required rest breaks and whether employers must pay for them under the federal Fair Labor Standards Act (FLSA). The answer depends on who predominantly benefits from those breaks: the worker or the employer.
Generally, you must pay for rest breaks of 20 minutes or less because they predominantly benefit your organization by re-energizing workers. However, when the rest breaks mostly benefit the worker, they are non-compensable. In your case, the six extra 10-minute rest breaks are medically necessary to accommodate the employee’s serious health condition, and therefore predominantly benefit the employee. You only have to pay for the two normal rest periods, not the additional six required by the medical certification. An employee may run available paid leave concurrently with FMLA leave, but otherwise the FMLA leave is unpaid. State law may also grant the right to use paid leave. Also, be aware that frequency and length of rest breaks may be covered by state law.
Have questions regarding the FMLA, FLSA, paid leave, or meal and rest breaks? See our Legal Guides on “Breaks and Meal Periods” in California, Idaho, Montana, Oregon, and Washington. For additional blogs related to wage and hour laws or leave laws, see our wage and hour and leave law blog sections.
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